The Absurdity of Intellectual “Property”

Kyle Scott’s case for copyright is interesting, and he should be commended for making it so clearly and intelligently. For him, as for many other libertarians, what people write is their own property, like any other kind of property, and they have a natural right to keep it. Government is merely the protector, not the source of their right. All this can be deduced from the natural rights theory most importantly exemplified by John Locke’s Second Treatise of Civil Government.

Unfortunately, so concerned is Mr. Scott with his line of deductive reasoning, so clear, so forcible, so all-sufficient, that he never notices what a strange kind of property he’s talking about. Copyright is property that stops and starts whenever the government starts or stops it. A few decades ago, it lasted for 28 years, with renewal for another 28 years, if you mixed your labor with the thing a second time, by filling out a form asking for renewal. Now it continues for 70 years after your death or, in the case of “work for hire” — work performed, for instance, in the employ of the Disney Corporation, which hired you to mix your labor on its account — for a whopping 90 years after the original publication of whatever you wrote or otherwise created.

Copyright is an invention of government, and it has fluctuated at the arbitrary whim of government.

I have no doubt that many other alterations in the lifetime of this weirdly fluctuating property will occur, as congressmen receive yet more campaign funds from yet more wealthy holders of copyright. As things stand today, however, the heirs of a 20-year-old who writes something, anything, today, and survives to the age of 80, can manifest themselves in the year 2144, demanding that you get their permission to republish this something, anything, that was produced so long ago by so callow a youth. And if the heirs are not around, in the sense of being visible, you will have to find them, or show that you tried. Then, miracle of miracles, in the year 2145, the troublesome property will vanish. The copyright will have expired, a mere 70 years after its author’s expiration, and you will be free to publish it a thousand times over, if you want.

Now really, does this look like property? Do farms and houses vanish 70 years after the deaths of their creators, unless some government action resuscitates them?

Historically, copyright is an invention of government, and it has fluctuated at the arbitrary whim of government. Mr. Scott would doubtless argue that this has nothing to do with the basic issue, which is one of individual right, right eventually recognized and protected, however imperfectly, by government. He might carry his reasoning to the obvious, though absurd, extreme of insisting that anything I write and perhaps toss into the street should be guaranteed to me and my heirs forever — that the heirs of Sophocles and King Solomon, no doubt very numerous by now, should be tracked down and reimbursed for every republication of these authors’ works. Oh no, no need for consultation of Athenian or Israelite statutes of inheritance, which knew nothing of copyright. Principle alone will guide us.

But in truth, copyrighted “property” is no property at all. The assumption that it is property is fraught with as many evils as St. Paul attributed to the love of money.

Everyone has a right to own a house, to sell it, or to pass it to his heirs. But the house doesn’t vanish 70 years after his death, or whenever Congress passes another law. Nor, to get closer to the root of the problem, is the house an abstract title to the legal authority to reproduce a house, the ownership of which title can require expert knowledge to identify after a fairly short time. No, there is the house, at 400 S. Main Street, and there are the people inhabiting the house or paying rent on it to a readily identifiable owner. A house is completely different from the reproduction of a house — or, still more abstractly, the right to reproduce it. Your property right in your house is in no way diminished by my building a house that looks exactly like it. Furthermore, you can’t just build a house and move away and abandon it, and expect other people to run and find you and pay you money for the right to live in it — much less the right to build a house in Dubuque or Delphi that’s exactly like that house. No, other people are eventually going to mix their labor with your house — use it, maintain it, claim it for their own. Even in the most rights-conscious communities, if you keep leaving your grandfather’s gold watch on the sidewalk, someone else is going to pick it up, wind it, clean it, and appropriate it, and no jury will convict him for doing so. Nor should it, all cookie-cutter libertarian theory to the contrary.

The vast majority of copyrights are of no value at all, and honoring them constitutes an enormous tax on productive people.

Now, a copyright is not like a house, and it is not like a gold watch. It is nothing so real as those things. In Mr. Scott’s conception, and that of the United States government, it is an absolute right to keep other people from copying something, for the sole reason that you produced it. You could say the same thing about — pardon my taste for low imagery — your garbage, or the stuff you put in your toilet. Copyright, in this conception, is an absolute guarantee that no one can copy your words, even if you abandoned them, even if you sold somebody the paper they were written on and walked away and didn’t bother to leave your address. Even if you gave the paper away. Even if you left it lying in the gutter. Even if it stayed in the gutter, or in the moldering archives of a vanity press, for seventy years after your death.

Now, if I sold you a house by claiming that Frank Lloyd Wright had built it, and he didn’t build it, but I built it myself, you could sue me for fraud — but the Wright estate could not. I had every right to build and sell the house, even if it looked the same as one of Wright’s houses; I just didn’t have the right to claim that he built it and charge you more accordingly. But if I sold you a laundry list, claiming that Wright had written it, and he did write it, and you reproduced it, only without the permission of his estate, the estate should be able to sue you successfully, according to the argument of Mr. Scott and many other libertarians. What’s the difference? It isn’t a difference of natural right, that’s for sure; it’s a difference of political enactments that have become so naturalized in libertarian thought that rationalizations are found for them.

It never occurs to dogmatists of copyright that valuable works could be protected by invoking laws against fraud. More important, it never occurs to them that the vast majority of copyrights are of no value at all, and that honoring them constitutes an enormous tax on productive people. I know scholars who spend much of their lives trying to trace the copyright owners of works that are almost 100 years old, works that are of no value except to the hapless researchers and a handful of readers. They are paying a pointless tax to a ridiculous law, a law that Mr. Scott would presumably make still more ridiculous by extending it to eternity.

It isn’t a difference of natural right; it’s a difference of political enactments that have become so naturalized in libertarian thought that rationalizations are found for them.

If labor has anything to do with the creation of property — which it doesn’t, contrary to Mr. Scott’s faith in Lockean dogmas, according to which I can’t pick up a kitten in the street without asking who mixed his labor with the land that sustained the kitten’s progenitors, all the way back to Noah — there are a great many more researchers and readers who have a more substantial property right to the stuff they research and read than the authors who once excreted it. If you don’t believe that, try mixing your labor with John Locke’s prose.

Mr. Scott is patently an intelligent person, yet his claims for copyright are patently absurd. This is an observation that could be made in respect to many radical libertarian arguments, particularly those whose results turn out to be, rather ironically, highly conservative. By Scott’s logic, high schools shouldn’t just be teaching Shakespeare; they should be supporting an eternal Shakespeare Trust, providing dividends for his millions of heirs, any one of whom could veto republication of his works, as a matter of right.

This prompts the question: under what circumstances are intelligent persons most likely to make absurd statements, without realizing their absurdity? Answer: When they are in love. And so it is: Mr. Scott — again, like too many other libertarians — is in love with an ideology and cannot see the absurdity to which his supposedly radical position leads him: the absurdity of endorsing, on the ground of individual rights, a massive governmental creation and subsidization of crony “property.”

Making Sauerkraut

Last spring, I took advantage of low cabbage prices and the still cool temperatures in the cellar to make my biannual batch of sauerkraut. I spent a pleasant hour turning ten dollars in raw materials into 50 dollars worth of kraut. Making the kraut requires hand mixing of salt, cabbage, onions, etc., a process that always makes me think of John Locke and property.

Locke’s Second Treatise talks about the individual taking raw, worthless land (as in America) and converting it into property if “he had mixed his labor with it and joined it to something of his own and thereby made it his property.” Locke undoubtedly knew that the word “property” comes from the Latin proprius and means “one’s own” or part of the very person himself. Locke (and Ayn Rand) felt that property was that which the individual needed to earn a living and avoid being a slave.

In Locke’s time, raw forest and prairie abounded and was worthless. Productive farmland was needed to make a living by most people — hence his emphasis on the effect of work on raw land. Nowadays, farmland in much of the U.S. is reverting to forest, but there has emerged plenty of raw material open to anyone for exploitation — an innovative business idea, and possibly a vague theoretical concept that could be turned into a brilliant invention or, as in my case, cheap cabbage to make sauerkraut. No matter what the raw material, adding labor makes it become the property, a part of the very substance, of whoever found and developed the unexploited potential.

Property in this Lockean sense seems to be restricted to things that an individual develops, evolves, or uses and are part of how he makes a living, what he thinks, or how he fits in with others. The property owner, personally involved in the production and enjoyment of his property, becomes so closely identified with the object that it becomes almost indistinguishable from himself. It’s only a small leap to see that the lived life of the individual also develops from raw potential.

I’ll illustrate this framework with my personal circumstances. My education and training, work history, experience, and business contacts are my formal means of making a living. My home, automobile, the books and computers that I use to entertain myself are certainly my property. My thoughts and dreams, the videos that I make, my conversations, the articles that I write, my family, friends, and my civic life (serving on several voluntary boards, etc.) — in short, the stuff that constitutes my daily lived experience, was either conjured out of nothing by focused work or grew out during a long quiet life. All this must be reckoned among my properties. I consider the customs, habits and hopes that can be construed as features of a moral life as part of my being and so my property as well.

But there is the second sense of “property” that is more troubling for me. As a result of working hard and living frugally I’ve accumulated unexpended work as savings and pensions that are invested in various financial instruments. I’d like to reflect on how this form of property, which I’ll call “investments,” differs from the property of my day-to-day lived life.

Let’s say that I buy 100 shares of some large corporation. Was my involvement anything more than doing some research on that stock and putting it into my online stock account? Is this investment really embedded in my life? The corporation was started many years ago by individual owners who made it their property and embedded in their lives. Ownership was eventually divided among an ever enlarging circle of partners, share holders, and lenders. It’s now divided in a million ways, but very few of the present owners either understand or have the information necessary to make good business decisions. Most are not critically dependent on this one stock and see it only as an accounting entry in a properly diversified portfolio.

This company has in fact become a public-private partnership run by an incestuous gang of managers and directors, all cooperating with government officials and forming a kind of nomenklatura. It typically plays fast and loose with ethical business practices, sponsors ad hoc laws to restrict competition, obfuscates losses, makes money with which it handsomely rewards the in-group, buys politicians, and keeps the stockholders placid.

Such companies can be vindicated to some extent. They cause big things to happen; large projects get built, and markets remain tranquil. The accusation of greed (one of the seven deadly sins) makes no sense when directed at these impersonal entities. Corporations are at once property and also hold property, and those property rights must be respected. Analytically, corporations are fungible, that is, can be bought and sold on a whim (try to sell my professional status on the stock market). It is individuals, not corporations, that hold the spoon; these companies are surprisingly vulnerable to changes in public tastes.

From my perspective, investments have evolved naturally in a normal free-market economy as the main insurance we have against age and illness. Stocks and bonds (and a Social Security check, if I can cut a chunk out of the pig’s ass as it waddles past) are necessary for a time when I can no longer earn a living by using my Lockean property. My CPA points out that wealth is important, not because it allows the individual to do nothing, but because it allows the individual to make better decisions. Investments do affect the owner in good ways.

But it irks me that I have no choice but to invest in such Juggernauts (an apt metaphor for ponderous objects of worship that sometimes crushed their devotees). I’m alienated from these investments; their methods and effects do not reflect my moral and intellectual values. They often operate against the commonweal and employ arbitrary political power that is foreign to my nature. They are impersonal and therefore amoral. Their investments are often mysterious, chaotic, and irrational. They are unprincipled, untethered from moral codes.

How can I deal with my disquiet?

I could follow news events regarding my holdings and sell my stock when I see something that particularly irks me. Boycotts can be employed when corporations cross some ill-defined moral line. I can vote or run against politicians who take money or do favors for corporations. Corporations won’t hire anarchists like me, so working on the inside is not an option.

In short, I can’t do very much. It's not the least bit like making sauerkraut.

About this AuthorErwin Haas lives in Grand Rapids, where he writes, films videos, and plays at Libertarian politics.